Thursday, August 20, 2009

Stephen Boissoin Appeal Document - Part 6

The Experience of Other Countries with Silencing Freedom of Speech

Because of Stephen Boissoin's Appeal, we have the benefit of seeing how the United Kingdom, Sweden, and our nearest neighbour, the USA have dealt with the issue of freedom of speech through the eyes of his lawyer Mr. Gerald Chipeur.

Though it is not exhaustive, this being a brief to an appeals court, it is significant, and meaningful to us, and to those of us who care about Human Rights, and in this instance, the right of free speech, both in the Province of Alberta and on a National level. This is my penultimate report on the brief, prepared by Mr. Chipeur on Stephen's behalf. For those of you who have not seen the brief, it is available here.

This is ground breaking litigation, frankly, and it is expensive ground breaking legislation, that Stephen is having to fund by himself. He has proven to be no less immune to the HRC finance mess than any one of us would we. Complainant, free. Respondent, costs up the wazoo. By my estimation, he is well on the way to a debt exceeding $50,000 before this debacle is over, one that had no valid reason to have begun in the first place. I urge you to help him, as you have helped others like Ezra Levant, Kathy Shaidle et al, or if you have not yet helped anyone, to open your hearts and pocket books and help him, because he needs your help, and your prayers. If you can donate to his cause, you can do so here.

United Kingdom

We begin with the United Kingdom, from whence a great deal, the majority really, of our originating jurisprudence stems.

In 2005, the Racial and Religious Hatred Bill was before the House of Commons. The member for Manchester, Mr. David Davis in debate quoted the Australia experience with "hate" legislation that had been brought in. They had discovered an unintended consequence (big surprise there) that a complaint against Christians by Muslims led to Christians watching over the Muslims looking for things to complain about, creating an even more undesirable climate. It caused Amir Butler, an original proponent of the laws in Australia to become an opponent and to opine:

"The real key to social cohesion is honest dialogue. A dialogue, unfettered by political correctness, that is based on recognition that we have different ideas."

Mr. Davis had done his homework, and obviously cared about the outcome as he also quoted Mr. Soli Sorabjee the Attorney General of India who had spoken on incitement to religious hatred thus:

"experience shows that criminal laws prohibiting hate speech and expression will encourage intolerance . . . we need not more repressive laws but more free speech to combat bigotry and promote tolerance."

The law was defeated in its then form, but succeeded the following year, though it did not include the concept of "abusive and insulting" and the act required proof of "intention", not just the airy fairy concept of possibility, that is so popular here.

Mr. Chipeur put in a quotation from the House of Lords on the Appeal for Reynolds V. Times Newspapers Ltd. [2001] case. This was a real case before real judges and juries, not judge Lori and her kangaroo court over a Letter to an editor. This case was about the former Prime Minister of Ireland and reporting of events in the UK over the change of office that occurred, and political maneuverings of the time. The former Prime Minister (Reynolds) had sued the newspapers for slander.

Lord Nicholls of Birkenhead spoke of the need to value freedom of speech, and its foundations, and that:

"any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved."

I am sure that Lori Andreachuk took that all into careful consideration, then tossed it aside like she tossed aside the recommendation of her investigator Ms. McGovern to not prosecute Stephen Boissoin in the first place.

Mr. Chipeur adds a very "chilling" quote from the case of Prolife Alliance V. British Broadcasting Corp., [2002] EWCA Civ 297, where Lord Justice Laws quoted the dissenting opinion of Lord Bridge of Harwich in a particular case that was later substantiated, as follows:

"Freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indespensable tool to regulate what the public may and what they may not know. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road."

How very true. The form of totalitarianism and homogeneity that our HRCs and HRTs are trying to promote in Canada is very worrisome.But, of course, like any good writer, Mr. Chipeur left his best quote of the UK experience for last when he referenced the R. v. Central Independent Television plc [1994] 3 All ER 641 case and the comments of Hoffman LJ as follows:

"The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them . . . [P]ublication may cause needless pain, distress, and damage to individuals and harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which governments and judges, however well motivated, think should not be published. It means the right to say things which 'right-thinking people' regard as dangerous or irresponsible."

Boy, oh boy, Lori Andreachuk sure never read this bit of jurisprudence, or if she did, she skipped over it pretty quickly. After all, it came from a real court.

So much for Mr. Chipeur's brief legal travelogue of the UK. Let's move on to Sweden.

Sweden

In Sweden, where life is freer allegedly, and blond moments are commonplace, literally if not figuratively, you could get jail time for hate speech or maybe not.

At his church in Sweden, Pentecostal Pastor, Ake Green delivered a sermon on July 20, 2003 in which he described homosexuality as "abnormal, a horrible cancerous tumor in the body of society." He also said that a person cannot be a Christian and a homosexual at the same time. At the end of his sermon, Green said: "We cannot condemn these people — Jesus never did that either. He showed everyone He met deep respect for the person they were (...) Jesus never belittled anyone."

The sermon was reported to the police and the controversy began. Pastor Green was sentenced to 1 month in the pokey for hate speech. Sounds like Canada in a few years doesn't it?

Needless to say, the conviction and sentence were appealed, and well, the Attorney General must be a blond, because he or she tried to uphold the conviction. What ultimately prevailed was not Swedish law, but Article 1o of the European Convention on Human Rights.

Ultimately what the Swedish Supreme Court found was that the hate law could not be insensitive to freedom of religion and freedom of speech. The bottom line was that you can't just call something someone says hate speech because you disagree with it, or it hurts your feelings like you can here in Canada, but the judge said it better so I will reproduce what he said and Mr. Chipeur quoted here:

" All statements of a degrading or derogatory nature are not, however, covered. Statements that cannot be regarded as exceeding the bounds of objective criticism of certain groups fall outside the criminal area. To be punishable it is required that it is completely clear that the statement exceeds the boundaries of a factual and responsible discussion concerning the group in question.

The criminal area shall not ... extend as far as to ... include a factual discussion of, or criticism of homosexuality. Criminalisation shall not constitute an obstacle to freedom of opinion or a threat to the formation of opinion. Moreover, the freedom of science shall be preserved. The statements made also imply that such assertions as are best met or set right in a free and open debate shall not be covered by the criminalisation."

In the end, they found for Pastor Green, believing that the European Court of Human Rights would overturn any other verdict regardless.

Unfortunately, we do not live in Europe, but in this Trudeaupia, where the foregone conclusion that sanity will prevail is not valid. It will take a lot of hot hard work, and cold hard cash to come to this conclusion here.

Now coming closer to home, what has been happening just south of us, or north if you live in Southern Ontario.

The United States of America

The US experience is pretty straight forward to date, and I emphasize TO DATE. Kathy Shaidle warned in her book that things look to be changing, and as a part time resident of the southern US, I see bad news on the rise for free speech. However, the constitution and courts have supported pornographers, flag burners, and the like, supporting individual rights of self expression over group rights.

Any look back to the McCarthy era views the time as odious, and not a shining moment in American history.

Americans, who love their flag, have been particularly unsuccessful in prosecuting flag burners, as horrendous an act as that seems to them corporately. And so, to today, freedom of speech remains enshrined in the psyche of the American people. But, the Democratic government seems determined to quell opinion that differs from their own, and is pushing through legislation that will calm the firestorm of opinion against them. This legislation has not met the light of day yet, nor the test of courts either, where it will come up against the American Constitution, and stiff opposition.

Thus ends a brief look at 3 other countries and their take on free speech as viewed mainly through the eyes of counsel to Stephen Boissoin. We continue to pray for his success in the case, and for the finances to pay for the success. One more installment to come.

2 comments:

Nicely written, it was really interesting. What I want to say is that even though I absolutely support free speech and also non-hate, I just cannot help but think it is very much based on interpretation or individual point of view. I mean, one person might consider something to be a part of free speech but the other may think it is simply hate.

I don't think people hating people is beneficial. You are right, and the cases support you. One person's hate is another's free speech.

But, the law is very murky as I am finding the more I dig into it, and as my newer posts now almost 3 weeks later show.

Now with the Lemire decision, the whole premise of hate speech and free speech is being called into question, as well it should.

Does Stephen Boissoin as a deeply religious man not have a right to be offended by the open teaching of homosexuality and its practices in the school rooms in Red Deer Alberta, including teaching teens how to use condoms for anal male/male sex? Does he not have a right to speak up about it, without it being called hate speech? Yes, it does offend homosexuals. But, what they are doing offended him, and his being offended should be as important.

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